Obama Supreme Court Nominee Picked By End Of Week
By Justin Gardner | Related entries in Barack, Obama, Supreme Court
The President called Senator Orrin Hatch today and filled him in on the timing and tenor of his new SCOTUS nominee.
Hatch raised concerns initially that Obama was using “buzz words†for a liberal activist justice by suggesting he wanted someone who had “empathy†for the country’s problems. But Obama told Hatch “that was not what he meant, and I take him at his word … and that he assured me that he would not be picking a radical or an extremist for the court that he was very pragmatic in his approach and that he would pick somebody who would abide by the rule of law.†[...]Explaining the designation generally, [White House press secretary Robert] Gibbs said: “I think the vast majority of the American people are not on either end of this, but instead somewhere in the middle looking for the very same requirements that the president is looking for: somebody that understands the rule of law, somebody that has a record of excellence and integrity, somebody who also understands how these opinions affect everyday lives, and will exercise some common sense.â€
Also, Obama called Arlen Specter and gave him the same info. So it should be noted what Specter is looking for in a nominee…or what he’s not looking for…
“I would hope that he would look beyond the Circuit Courts of Appeals which now populates the Supreme Court and pick someone with a greater world experience and diversity,” Specter said, noting that the sitting justices have “lives and experiences which are all very similar.”“It would be good to get people who know something besides wearing a black robe,” Specter said.
I tend to agree with the spirit of this approach, but if Obama reaches outside of the normal channels it could open him and nominee up for increased scrutiny. Because at that point, the nominee won’t have the traditional measures that many look to when determining if they’re qualified, how they’re rule, etc., so it could bring up another Harriet Miers situation…and we all saw how that turned out for Bush.
Regardless of where the nominee comes from, it’s encouraging to hear that Obama is talking about the pragmatic path and reaching out to moderates and Republicans this early. Because the last thing he needs is a brutal partisan fight over a SCOTUS pick.
More as it develops…
This entry was posted on Monday, May 4th, 2009 and is filed under Barack, Obama, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
May 4th, 2009 at 8:37 pm
I read the Republicans are adamantly opposed to Obama’s pick and they will let us know why as soon as they find out who Obama selected
May 4th, 2009 at 8:38 pm
Justin wrote
Regardless of where the nominee comes from, it’s encouraging to hear that Obama is talking about the pragmatic path and reaching out to moderates and Republicans this early. Because the last thing he needs is a brutal partisan fight over a SCOTUS pick.
I predict that no matter who he picks there will be a partisan fight. We give and we give and we take and we take and we get no closer to ever having our point of view represented. Scalia, Alito, Roberts, Thomas is there a point at which we should not get someone just to balance things out? Tired of feeling underrepresented or not represented at all.
May 4th, 2009 at 8:39 pm
Well, three observations. First, Obama says that he will “not be picking a radical or an extremist for the court[,] that he [i]s very pragmatic in his approach and that he would pick somebody who would abide by the rule of law,†and that he doesn’t want a “liberal activist justice.” But we also know what he said in his book, what he said on the campaign trail last year, and, indeed, what he said on Friday, and those statements – whether he realizes it or not – add up to a liberal activist. A good litmus test is Ledbetter: if you would have voted with the dissenters, you would have cast a vote for judicial activism. Of course, that Obama later signed a statute changing title VII in response doesn’t mean that he thought the court got it wrong, but my recollection is that he criticized the decision, a simply untenable position.
He seems to imply that he is looking for a pragmatist. The two pragmatists-in-chief of the federal bench are Justice Breyer and Judge Posner; one is already on the Supreme Court, and Obama is not going to appoint Richard Posner to it. So who is he going to appoint? I take him at his word that we won’t appoint someone he deems an extremist, but that turns out to be quite subjective: President Bush didn’t think John Roberts and Sam Alito were extremists, but their critics branded them as such. (Wrongly, by the way: one could argue they were wrong, but both were inarguably well within the mainstream of legal thought unless one looks only at liberal legal thought.) I tend to think Harry Koh is an extraordinarily dangerous extremist, but his defenders disagree, and Obama clearly doesn’t think so in light of his appointing Koh to State. It turns out that what counts as an extremist has a lot to do with where you think the middle is, and most people tend to think that the middle flows around them. So I take him at his word, but I don’t put much stock in it; from what we know of where Obama believes the mainstream lies, there simply isn’t anyone he could realistically appoint who would be an extremist.
Second, it’s not going to be a brutal fight. Obama has the votes in the Senate to ram through virtually any nominee, and the CGOP made an awful lot of noise (over my express warnings that it was a mistake) about how all nominees deserve an up or down vote.
And third, for my money, Obama has good candidates to choose from. Judge Wood would be an ideal match for him, I think. Judge Sotomayor has her critics and defenders; I tend to think the critics have the best of it (honestly, when Jeff Rosen – hardly the most unbiased observer – says what he says today in TNR, it’s all over), but I could see the appeal to Obama of appointing her. There are quite a few state Supreme Court judges who might be a good fit for Obama. And if he really must appoint someone who isn’t a judge–really a quite distasteful thing, in my view, no matter what Specter says (although one must acknowledge pot luck: many able justices have served with distinction on the court despite having no judicial experience, including such titans as William Rehnquist, Hugo Black, and Robert Jackson)–there are Professors Karlan and Sullivan, and General Kagan. None of these are people I would appoint, but they are all within the ballpark and I could accept them as reasonable, mainstream candidates, just as were Roberts and Alito. If he instead looks to an extremist like Koh, that would be unfortunate.
May 4th, 2009 at 8:56 pm
Kevin Says:
This is just a bizarre comment because it implies those four are alike. They aren’t – something made abundantly clear in cases like Kimbrough-Gall, Crawford v. Marion County Election Bd., Arizona v. Gant, and most of all WRTL and Hein, which lay bare fundamental differences. All four of them are on the right hand side of the court, but that doesn’t make them the same. It is far more accurate to say that there are two quasi-formalist conservatives (Scalia and Thomas), two pragmatic, precedent-oriented conservatives (Roberts and Alito), two precedent-oriented pragmatic liberals (Stevens and Souter), and two doctrinaire liberals (Ginsburg and Breyer; Breyer is usually labelled as a pragmatist, and doubtless thinks of himself as such, but after years of following his output, I don’t buy it). And then there’s Kennedy in the middle, deciding things just as he pleases without any guiding star beyond maximizing his own power and prestige.
Why would you expect to be represented on a court? It isn’t a representative branch of government. Although the courts unavoidably make law (it suffices as a rhetorical point to say that the courts should apply the law not make it, but it’s misleading), their job is fundamentally to elaborate what has already been decided by the legislative branch (or the framers, in the case of Constitutional provisions). This bizarre idea that the court should represent various demographic or ideological groups is deeply misguided.
And besides, there are four liberals on the court, and the swing vote, Kennedy, is a social liberal. So even if you (or I) ought to be “represented,” you are. All four of them are sharp, intelligent, and articulate, fully able of expressing the liberal position in any case that calls for one.
May 4th, 2009 at 9:13 pm
Simon-
It always comes down to any who agree with you being rational. 7 of the 9 justices were chosen by Republicans You admit 4 are “on the right hand side”. So for you, only someone on the right (which you will see as both correct and moderate) will be a correct choice.
Then you made the statement Why would you expect to be represented on a court? Because there are generally at least two views of what is right or wrong in a case. To get to the court it isn’t so obvious or it wouldn’t have gotten there. (Although I am sure it is always obvious to you).
I get the idea that if the court were of conservative leaning we’d still have slavery and no women’s vote and they would have no issue with that whatsoever.
The worst judicial activism of my lifetime was the appointment of Bush the first time. So I really can’t swallow the legal purity line you are trying to feed.
May 4th, 2009 at 11:04 pm
Kevin, it’s a strange thing for you to claim that “[i]t always comes down to any who agree with you being rational” when, not three days ago in these pages, I lavished praise on Justice Souter. I disagree with Souter on a great many things, but he and I share a love for the law and whatever disagreements he and I might have, I would never charge him with being irrational.
As to slavery and women’s right to vote, your claim is simply historically ignorant. Neither the abolition of the former nor the imposition of the latter were demanded by the Constitution until the people amended it in the Fifteenth and Nineteeth Amendments. I fully support those amendments, but the idea (insinuated in your comment) that the court ought to have wrung their substance from the pre-existing constitution is fanciful. Thus, until the people acted to amend, the court had no warrant to strike down slavery or mandate female suffrage, and after the people acted, there was little need for the court to so act. (It did, however, fail to enforce the Fourteenth Amendment’s plain import for many years, until the Brown decision.) You simply have no appreciation of the structure of this country if you can’t understand that not every task is for the courts. The business of the courts is by and large to decide what is, not what ought to be.
I have no intention of getting into yet another argument over Bush v. Gore. The claims for it as judicial activism are overheated and unpersuasive, as Posner and Althouse have well explained, and as we have talked about before. You are entitled to remain ignorant as you please, but for sensible people, when legal questions are presented to courts of competent jurisdiction, those courts ordinarily resolve them. The court acted for the wrong reasons, but to the right effect, as the Chief Justice well-explained in his concurrence — notwithstanding a dissent by Justice Souter that I would respectfully submit to him was rational, but erroneous.
May 4th, 2009 at 11:26 pm
Simon you are right on one thing “rational” was a poor choice of words. Just as I think crazies to describe people you don’t agree with was. What I should have said, is that you think the people who are correct are the ones who agree with you. (Not really a big thing except for the fact I think we all do it and you seem to think it’s only the rest of us)
As to Brown, that is exactly my point. You seem to say the Court had to step in to actually apply the law when society had allowed it to be a law in name only. There will always be that need because the powers that be are always the powerful (ably represented by Republicans) and someone somewhere should stand up for the little guy. Where the law is clear, judges should just apply it. Where it isn’t? There should be more than one side represented Because at that point, both sides should be represented.
May 4th, 2009 at 11:29 pm
oh…
and permit me to reciprocate. I sent Justin the link on Kemp because I thought Kemp truly believed he was doing the right thing for his country. Like you and Souter I didn’t see eye to eye with him but he was honorable.